TMI Blog2020 (12) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Funded Research Institutes at 5% rate of GST by availing benefit under Notification No.47/2017-IGST(rate) dated 14.11.2017 and 45/2017-CGST(rate) dated 14.11.2017. The same goods were also supplied by the appellant at the rate of 18% GST to other purchasers. The appellant also did not carryout any further processes i.e. checking of goods, testing, inspection etc., and supplied the goods as such, it is also found that no value addition has been done by the appellant. The goods procured are attracting the same rate as the appellant has also supplied the goods at the rate of 18% GST to other purchaser without availing the benefit of notification, therefore such goods can not be treated as Inputs and does not qualify the criteria prescribed under Inverted rated duty structure as provided under Section 54 (3) (ii) of CGST Act, 2017. Appeal dismissed. - 109 & 110 (JPM)/CGST/JPR/2020 - - - Dated:- 13-11-2020 - (J.P. MEENA) ADDITIONAL COMMISSIONER (APPEALS) These two appeals have been filed under Section 107 of the Central Goods and Service Tax Act, 2017 by Sh. Deepanshu Agrawal, M/s ATCG India, IInd Floor, A-206, Spectrum Tower, BDI Sunshine City, Bhiwadi (hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various research institutes under the purchase orders on the payment of 5% tax by availing exemption Notification No.47/2017-IGST(rate) dated 14.11.2017 and 45/2017-CGST(rate) dated 14.11.2017 and part supplies were also made to other purchasers on full rate of tax i.e. 18%. The supplies made at reduced rate resulted in accumulation of ITC of which the taxpayer have filed refund claims for the quarter ending September-2019 and December-2019. 2.3 The adjudicating authority has also found that the appellant has procured the Scientific and Technical Instruments, Apparatus, Equipment etc., and supplied the same as such i.e. without even repacking to the Public Funded Research Institutes, the provisions clause (ii) of sub section (3) of Section 54 of the CGST Act, 2017 for refund of accumulated credit (ITC) on account of rate of tax on input being higher than the rate of tax on output supplies appeared to be not applicable, as the same is not covered under the definition of input as defined under Section 2(59) of the CGST Act, 2017 for the outward supplies. 2.4 Accordingly, the adjudicating authority issued a Show Cause Notices dated 30.03.2020 to the appellant proposing therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2(105) of the act as (105) supplier in relation to any goods or services or both, shall mean the person supplying the said goods or services or both and shall include an agent acting as such on behalf of such supplier in relation to the goods or services or both supplied; that in the present case Appellant is supplier of goods on perusal of definition mentioned above even agent acting on behalf of supplier who have supplied goods is also included in the definition of supplier and term supply is very broad in nature and its scope has been clearly defined under Section 7 of the CGST/SGST Act, 2019. SECTION 7. Scope of supply. - (1) For the purposes of this Act, the expression supply includes -(a) all forms of supply of goods or services or such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (b) import of services for a consideration whether or not in the course or furtherance of business; [and] (c) the activities specified in Schedule I, made or agreed to be made without a consideration; [ * * *] 3[(d)* * *] [ (1A) where cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for running trade or commerce. Such activity could be trading of goods, manufacturing of goods and rendering of service e.g. a photographer carries out the activity of clicking photos, processing of firms, developing and printing on paper. These activities are essential for the purpose of carrying out his activity. Therefore, these activities can be considered as performed in the course of business. In the present case appellant have procured goods to sale them to their customers to earn profit or for the purpose of commerce. Such activity even if removed as such or without repacking is termed as trade and included in the definition of business. It is worthy to mention here that Ld AO have denied their refund only on this ground that removal of goods as such or trading of goods is not in the course or for further of business. that Section 54 does not bar refund on account of Inverted Tax Structure in case of Trading of Goods. (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period Provided that no refund of unutilised input tax credit shall be allowed in cases other than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption Notification No.47/2017-IGST(rate) dated 14.11.2017 and 45/2017-CGST(rate) dated 14.11.2017 and part supplies were also made to other purchasers on full rate of tax i.e. 18%. The adjudicating authority has not treated the impugned goods as Input as defined under Section 2(59) of the CGST Act, 2017 for the purpose of refund claim under Inverted duty structure and rejected the refund claim. The issue involved in the present case is that whether the goods on which credit is accumulated and refund is claimed can be treated, as 'Input and falls under the purview of inverted duty structure or otherwise'. Section 2(52) and 2(59) of the CGST Act, 2017 read as under:- goods means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply; input means any goods other than capital goods used or intended to be used by a supplier in the course or furtherance of business; Section 54(3) of the CGST Act, 2017 reads as under:- Subject to the provisions of sub-section (10), a regis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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